As filed with the Securities and Exchange Commission on September
18, 2018
File No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________________
GENERAL FINANCE CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware
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32-0163571
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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39 East Union Street
Pasadena, California 91103
(626) 204-6308
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(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive
offices)
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Jody E Miller
Chief Executive Officer
39 East Union Street
Pasadena, California 91103
(626) 204-6308
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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____________________________
Copies to:
Christopher A. Wilson, Esq.
General Counsel, Vice President & Secretary
39 East Union Street
Pasadena, California 91103
Phone: (626) 204-6308 Facsimile: (626) 795-8090
Approximate
date of commencement of proposed sale to the public:
From time to time after the effective
date of this registration statement.
If
the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box:
If any of the securities being
registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. ☑
If this Form is filed to
register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
☐
If this Form is a
post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration
statement for the same offering. ☐
If this Form is a
registration statement pursuant to General Instruction I.D. or a
post-effective amendment
thereto that shall become effective upon filing with the Commission
pursuant to Rule
462(e) under the Securities
Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the following box.
☐
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company,” and
“emerging growth company” in Rule 12b-2 of the Exchange
Act. (Check one):
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Large accelerated filer ☐
Non-accelerated filer (Do not check if a smaller reporting
company) ☐
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Accelerated filer ☑
Smaller reporting company ☐
Emerging growth company ☐
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If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of Securities Act.
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Title
of each Class of
Securities
to be Registered
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Amount
to be
Registered
(1)
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Proposed
Maximum
Offering
Price Per Unit
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Proposed
Maximum
Aggregate
Offering Price
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Amount
of
Registration
Fee
(3)
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Common Stock, par
value $0.0001 per share
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(2)
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(2)
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(2)
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(2)
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Preferred Stock,
par value $0.0001 per share
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(2)
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(2)
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(2)
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(2)
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Debt
Securities
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(2)
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(2)
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(2)
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(2)
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Warrants
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(2)
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(2)
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(2)
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(2)
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Total
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(2)
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(2)
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$250,000,000.00
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$31,125.00
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(1)
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An
indeterminate amount of securities of each identified class is
being registered as may from time to time be offered pursuant to
this registration statement at indeterminate prices, along with an
indeterminate number of shares that may be issued upon exercise,
settlement, exchange or conversion of securities offered or sold
hereunder. These securities may also be sold separately, together
or as units with the other securities registered hereunder. The
securities registered hereunder will have an aggregate offering
price that does not exceed $250,000,000 or the equivalent in any
other currency, currency unit or units, or composite currency or
currencies.
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(2)
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Not
required to be included in accordance with General Instruction
II.D. of Form S-3.
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(3)
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Calculated
pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933, as amended.
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The Registrant
hereby amends this Registration Statement on such date or dates as
may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of
1933, as
amended, or until the
Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may
determine.
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The information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities
and is not soliciting an offer to buy these securities in any state
where the offer or sale is not permitted.
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SUBJECT TO COMPLETION, DATED SEPTEMBER 18, 2018
PROSPECTUS
$250,000,000
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
We may offer common stock, preferred stock, debt
securities and warrants from time to time in one or more
classes or series, separately
or together, and in amounts, at prices
and on terms that we will determine at the time of the offering.
Specific terms of these securities will be provided in supplements
to this prospectus. You should read this prospectus and any
supplement carefully before you invest.
The common stock, preferred stock, debt securities
and warrants may be offered in amounts, at prices and on terms
determined at the time of the offering, on a delayed or continuous
basis directly by us, through agents, underwriters or dealers as
designated from time to time, through a combination of these
methods or any other method as provided in the applicable
prospectus supplement. See “Plan of Distribution.” The
prospectus supplement will list any agents, underwriters or dealers
that may be involved and the compensation they will receive. The
prospectus supplement will also disclose the total amount of money that we will receive
from selling the securities being offered, after the expenses of
the offering.
You
should carefully read this prospectus and any accompanying
prospectus supplement, together with the documents we incorporate
by reference, before you invest in any of our
securities.
Our common stock is listed on the NASDAQ Global
Market under the symbol “GFN.” On
September 17, 2018, the reported last sale price of our common
stock on the NASDAQ Global Market was $14.40 per share. We have not
yet determined whether the other securities that may be offered by
this prospectus will be listed on any exchange, inter-dealer
quotation system or over-the-counter market. If we decide to seek
the listing of any such securities upon issuance, the prospectus
supplement relating to those securities will disclose the exchange,
quotation system or market on which the securities will be
listed.
Investing in these securities involves certain risks. See
the “Risk Factors” section of this prospectus beginning
on page 2 and the “Risk
Factors” section in our most recent Annual Report on Form
10-K and in our subsequent Quarterly Reports on Form 10-Q and in
the documents incorporated by referenced herein and
therein.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The
date of this prospectus is .
TABLE OF CONTENTS
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Page
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About
this Prospectus
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ii
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Forward-Looking
Statements
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ii
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The Company
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1
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Risk
Factors
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4
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Use
of Proceeds
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5
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Ratio
of Earnings to Fixed Charges
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6
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Description
of Common Stock
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7
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Description
of Preferred Stock
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9
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Description
of Debt Securities
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11
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Description
of Warrants
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17
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Forms
of Securities
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Plan
of Distribution
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Legal Matters
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Experts
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21
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Where
You Can Find Additional Information
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Incorporation
by Reference
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_________________
You should rely only on the information that we
have provided or incorporated by reference in this prospectus, any
applicable prospectus supplement and any related free writing
prospectus that we may authorize to be provided to you. We have not
authorized anyone to provide you with different information. No
dealer, salesperson or other person is authorized to give any
information or to represent anything not contained in this
prospectus, any applicable prospectus supplement or any related
free writing prospectus that we may authorize to be provided to
you. You must not rely on any unauthorized information or
representation. This prospectus is an offer to sell only the
securities offered hereby, but only under circumstances and in
jurisdictions where it is lawful to do so. You should assume that
the information in this prospectus, any applicable prospectus
supplement or any related free writing prospectus is accurate only
as of the date on the front of the document and that any
information we have incorporated by reference is accurate only as
of the date of the document incorporated by reference, regardless
of the time of delivery of this prospectus, any applicable
prospectus supplement or any related free writing prospectus, or
any sale of a security. Since the respective dates of the
prospectus contained in this registration statement and any
accompanying prospectus supplement or related free writing
prospectus, our business, financial condition, results of
operations and prospects may have changed. We may only sell
securities pursuant to this prospectus if this prospectus is
accompanied by a prospectus supplement.
i
ABOUT THIS PROSPECTUS
This prospectus is part of a registration
statement that we filed with the Securities and Exchange
Commission, which we refer to as the “SEC,” utilizing a
shelf registration process. Under this shelf registration process,
we may, from time to time, offer and sell any combination of the
securities described in this prospectus in one or more
offerings for an aggregate initial public offering price of
up to $250,000,000. This prospectus
provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms
of the offering and the offered securities. The prospectus
supplement may also add, update or change information contained in
this prospectus. Any statement that we make in this prospectus will
be deemed modified or
superseded by any inconsistent statement made by us in a prospectus
supplement. You should read this prospectus, any prospectus
supplement and any related free
writing prospectus together with
additional information described under the heading “Where You
Can Find More Information.”
References to
“we,” “us,” “our” or the
“Company” refer to General Finance Corporation, a
Delaware corporation (“GFN”), and its consolidated
subsidiaries. These subsidiaries include GFN U.S. Australasia
Holdings, Inc., a Delaware corporation (“GFN U.S.”);
GFN Insurance Corporation, an Arizona corporation
(“GFNI”); GFN North America Leasing Corporation, a
Delaware corporation (“GFNNA Leasing”); GFN North
America Corp., a Delaware corporation (“GFNNA”); GFN
Realty Company, LLC, a Delaware limited liability company
(“GFNRC”); GFN
Manufacturing Corporation, a Delaware corporation
(“GFNMC”), and its subsidiary, Southern Frac, LLC, a
Texas limited liability company (collectively “Southern
Frac”); Pac-Van, Inc., an Indiana corporation, and its
Canadian subsidiary, PV Acquisition
Corp., an Alberta corporation (collectively “Pac-Van”);
Lone Star Tank Rental Inc., a Delaware corporation (“Lone
Star”); and GFN Asia Pacific Holdings Pty Ltd, an
Australian corporation (“GFNAPH”), and its
subsidiaries, GFN Asia Pacific Finance Pty Ltd, an Australian
corporation (“GFNAPF”), Royal Wolf Holdings Limited, an
Australian corporation (“RWH”), and its Australian and
New Zealand subsidiaries (collectively, “Royal
Wolf”).
FORWARD-LOOKING STATEMENTS
This prospectus, including the documents
incorporated by reference into this prospectus, contains
forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended (the “Securities
Act”), and Section 21E of the Securities Exchange Act of
1934, as amended. In some cases, you can identify forward-looking
statements by terminology such as “may,”
“might,” “will,” “should,”
“could,” “would,” “expects,”
“plans,” “anticipates,”
“believes,” “estimates,”
“predicts,” “potential,”
“continue” or the negative of such terms or other
similar expressions. We have based these forward-looking statements
on our current expectations and projections about future events.
These forward-looking statements are subject to known and unknown
risks, uncertainties and assumptions about us that may cause our
actual results, levels of activity, performance or achievements to
be materially different from any future results, levels of
activity, performance or achievements expressed or implied by such
forward-looking statements. These statements are only predictions
based on our current expectations and projections about future
events and speak only as of the date of this
prospectus. We believe the
expectations reflected in the forward-looking statements are
reasonable, but we cannot guarantee future results, level of
activity, performance or achievements. Neither we nor any other
person assumes responsibility for the accuracy and completeness of
any of these forward-looking statements. We are under no duty to
update any of these forward-looking statements after the date of
this prospectus to conform our prior statements to actual results
or revised expectations. There
are important factors that could cause our actual results, level of
activity, performance or achievements to differ materially from the
results, level of activity, performance or achievements expressed
or implied by the forward-looking statements, including those
factors discussed under the caption entitled “Risk
Factors” in our Annual Report on Form 10-K for the fiscal
year ended June 30, 2018 and documents we have filed with the SEC
thereafter. We maintain a website at www.generalfinance.com that
makes available, through a link to the SEC’s EDGAR system
website, our SEC filings. Information contained on our
website is not incorporated by reference into this prospectus, and
you should not consider information contained on our website as
part of this prospectus.
ii
THE COMPANY
Overview
We are
a leading specialty rental services company offering portable
storage, modular space and liquid containment solutions, with a
diverse and expanding lease fleet of 85,812 units as of June 30,
2018. Our primary 95 branch locations across North America and the
Asia-Pacific offer a wide range of portable storage units,
including our core 20-feet and 40-feet steel containers, office
container, mobile office and modular space products and steel tanks
that provide our customers a flexible, cost-effective and
convenient way to meet their temporary storage and space needs. Our
units are easily customized to satisfy our customers’
specific application needs and include numerous value-added
components. We provide our storage solutions to a diverse base of
over 47,000 customers across a broad range of industries,
including the commercial, construction, transportation, industrial,
energy, manufacturing, mining, retail, consumer, education and
government sectors. Our customers utilize our storage and space
units for a wide variety of applications, including the temporary
storage of materials, supplies, equipment, retail merchandise
inventories, documents and liquid storage and for office
use.
We
focus on leasing, rather than selling, our units. Approximately 64%
of our total non-manufacturing revenues for the year ended June 30,
2018 (“FY 2018”) were derived from leasing activities.
We believe our business model is compelling because it is driven by
lease fleet assets that:
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generate a
recurring revenue stream with average lease durations of over 12
months;
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possess
long useful lives of 20 to 30 years with high residual
values;
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return
the original equipment cost through revenue within four years on
average;
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operate
at high lease fleet utilization levels, historically between 70%
and 85%;
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require
low maintenance expenditures; and
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earn attractive
margins.
Our
lease fleet is comprised of three distinct specialty rental
equipment categories that possess attractive asset characteristics
and serve our customers’ on-site temporary needs and
applications. These categories match the sectors we serve and which
we collectively refer to as the “portable services
industry” - portable (or mobile) storage, modular space and
liquid containment.
Our
portable storage category is segmented into two products:
(1) storage containers, which primarily consist of new and
used steel shipping containers under International Organization for
Standardization (“ISO”) standards, that provide a
flexible, low cost alternative to warehousing, while offering
greater security, convenience and immediate accessibility; and
(2) freight containers, which are designed for either
transport of products by road and rail and are only offered in our
Asia-Pacific territory.
Our
modular space category is segmented into three products:
(1) office containers, which are referred to as portable
container buildings in the Asia-Pacific, are either modified or
specifically manufactured containers that provide self-contained
office space with maximum design flexibility. Office containers in
the United States are oftentimes referred to as ground level
offices (“GLOs”); (2) modular buildings, which
provide customers with flexible space solutions and are often
modified to customer specifications and (3) mobile offices,
which are re-locatable units with aluminum or wood exteriors and
wood (or steel) frames on a steel carriage fitted with axles, and
which allow for an assortment of “add-ons” to provide
convenient temporary space solutions.
Our
liquid containment category includes portable liquid storage tanks
that are manufactured 500-barrel capacity steel containers with
fixed axles for transport. These units can be utilized for a
variety of applications across a wide range of industries,
including refinery, petrochemical and industrial plant maintenance,
oil and gas services, environmental remediation and field services,
infrastructure building construction, marine services, pipeline
construction and maintenance, tank terminal services, waste
management, wastewater treatment and landfill
services.
1
Summary Organization
Chart (1)
(2)
(1)
Summary
organization chart is illustrative and does not reflect our legal
operating structure.
(2)
Reflects
consolidated revenues for FY 2018.
Portable Storage
The
storage industry includes two principal markets, fixed self-storage
and portable storage. The fixed self-storage market consists of
permanent structures located away from customer locations used
primarily by consumers to temporarily store excess household goods.
We do not participate in the fixed self-storage market with
permanent structures. The portable storage market, in which we
primarily operate, differs from the fixed self-storage market in
that it brings the storage solution to the customer’s
location and addresses the need for secure, temporary storage with
immediate access to the storage unit. The advantages of portable
storage include convenience, immediate accessibility, improved
security and lower costs. In contrast to fixed self-storage, the
portable storage market is primarily used by businesses and offers
a flexible, secure, cost-effective and convenient alternative to
constructing permanent warehouse space or storing items at an
offsite facility. A broad range of industries, including the
construction, industrial, commercial, retail and government
sectors, utilize portable storage equipment to meet both their
short-term and permanent storage needs.
The
portable storage industry is fragmented in each of our geographic
markets, with numerous participants in local markets leasing and
selling portable storage units. While we are not aware of any
published third-party analysis of either the Asia-Pacific or North
American portable storage markets, we believe the portable storage
sector has experienced steady growth since the 1990s and is
achieving increased market share compared to other storage
alternatives because of an increasing awareness of the benefits
that portable storage units offer, including the availability,
convenience, security and cost benefits of portable storage, as
well as an increasing number of new applications for portable
storage units.
Modular Space
Modular
space solutions, including modular buildings, mobile offices and
portable container buildings, are used primarily by businesses to
address either temporary or permanent space needs. We believe
modular space delivers four core benefits compared to permanent
buildings or structures: reusability, timely solutions, lower costs
and flexibility. Modular buildings may offer customers significant
cost savings over permanent construction and can generally be
installed more quickly because site work and fabrication can take
place concurrently. In addition, modular solutions are not site
specific and can be configured in a number of ways to meet multiple
needs. Finally, modular buildings are reusable and will generally
serve a wide variety of uses during their life span. A variety of
industries utilize modular space solutions, including construction,
resources, government, education, retail and special events, among
others.
2
The
Modular Building Institute, in its 2017 Relocatable Buildings
Annual Data Report, estimated that the North American modular space
(or relocatable) sector generated approximately $4.0 billion in
annual revenue. The sector has experienced growth over the last
thirty plus years as the number of applications for modular space
has expanded and recognition of the product’s positive
attributes has grown. By outsourcing their space needs, customers
are able to achieve flexibility, preserve capital for core
operations, and convert fixed costs into variable costs. The IBIS
World Industry Report published in November 2017 estimated that the
portable container buildings market in Australia generated revenue
of AUS$2.0 billion ($1.5 billion), of which approximately AUS$1.3
billion ($1.0 billion) related to the markets in which we offer a
competing product. We believe that we are well positioned to
benefit from any growth in the North American and Asia-Pacific
modular space markets.
We
expect that the modular space market will grow over the long-term,
driven in part by increasing awareness of the advantages of modular
space. Additionally, we believe that the advantages of modular
space over permanent buildings and structures of reusability,
timely solutions, lower costs, and flexibility are highly valued in
many of the end markets we serve. We further believe the increased
penetration of modular space solutions in additional end markets
will also continue to drive market growth.
Liquid Containment
Portable liquid
storage tank containers are used in environmental and industrial
applications to temporarily store hazardous and nonhazardous
liquids and semi-solids. The tanks are used by customers across a
wide variety of end markets, including chemical, refinery and
industrial plant maintenance, environmental remediation,
infrastructure building construction, marine services, oil and gas
exploration and field services, pipeline construction and
maintenance, tank terminal services, wastewater treatment and waste
management and landfill services. Liquid containment end market
demand is recurring and is driven by the non-discretionary nature
of required customer maintenance cycles, an increasing enforcement
of existing environmental regulations, a growing outsourcing of
liquid containment solutions and an increasing level of vendor
consolidation. We believe that the rental industry in the U.S. for
liquid containment equipment is fragmented and generated
approximately $1.4 billion of annual rental revenues in 2013
– 2014. As a result of the decline in oil and gas prices
during the latter part of our year ended June 30, 2015, the size of
the liquid containment sector has contracted. However, oil and gas
drilling and production activity increased in FY 2018, particularly
in the Permian Basin of Texas. We believe that we can leverage our
branch network, existing relationships and operating philosophies
to successfully compete in this sector. Our research indicated that
many of the companies that used containment solutions also used
portable storage and mobile office products.
Additional Information
We
incorporated in Delaware on October 14, 2005. Our principal executive offices are located at 39
East Union Street, Pasadena, California 91103, and our telephone
number is (626) 204-6308.
3
RISK FACTORS
An investment in our securities involves a high
degree of risk. You should carefully consider the risk factors and
all of the other information included in, or incorporated by
reference into, this prospectus, including those included in our
most recent Annual Report on Form 10-K and, if applicable, in our
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, in
evaluating an investment in our securities. If any of these risks
were to occur, our business, financial condition or results of
operations could be adversely affected. In that case, the trading
price of our securities could decline and you could lose all or
part of your investment. When we offer and sell any securities
pursuant to a prospectus supplement, we may include additional risk
factors relevant to such securities in the prospectus
supplement or any related free writing
prospectus.
4
USE OF PROCEEDS
Unless otherwise specified in the applicable
prospectus supplement, the net proceeds from the sale of the
securities to which this prospectus relates will be used for
general corporate purposes, which may include acquisitions,
refinancing or repayment of
indebtedness, capital expenditures and working capital, increasing
the size of and investment in our North American fleet of storage,
office and portable liquid storage containers, modular buildings
and mobile offices and pursuing
other business opportunities.
Until
we can utilize the net proceeds for some or all of these purposes,
we may also invest the net proceeds in certificates of deposit,
United States government securities or certain other
interest-bearing securities. If we decide to use the net proceeds
from an offering of securities for a particular purpose or
purposes, we will describe that specific purpose or purposes in the
related prospectus supplement.
5
RATIO OF EARNINGS TO FIXED CHARGES
The
following table sets forth unaudited information on our ratio of
earnings to fixed charges on a consolidated basis for the periods
presented. For purposes of the ratios presented below, (i) earnings
consist of consolidated operations before income taxes and fixed
charges and (ii) fixed charges include consolidated interest
expense, one-third of rent expense (approximately the portion which
represents interest) and preferred stock dividend costs of General
Finance Corporation.
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Year Ended June 30,
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2018
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2017
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2016
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2015
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2014
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(unaudited)
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Ratio of earnings to fixed charges
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6
DESCRIPTION OF COMMON STOCK
The
following description of our common stock is based upon our amended
and restated certificate of incorporation, our amended and restated
bylaws and applicable provisions of law. We have summarized certain
portions of our amended and restated certificate of incorporation
and amended and restated bylaws below. This summary is not
complete. Our amended and restated certificate of incorporation and
amended and restated bylaws have been filed as exhibits to the
registration statement of which this prospectus is a part. You
should read our amended and restated certificate of incorporation
and amended and restated bylaws for the provisions that are
important to you.
General
We are authorized to issue
100,000,000 shares of common stock, par value $.0001 per
share. As of September 17,
2018, 30,208,822 shares of common
stock were outstanding held by
50 stockholders of record.
Voting Rights
Common stockholders of record are
entitled to one vote for each share held on all matters to be voted
on by stockholders. The holders of our common stock do not
have cumulative voting rights.
Pursuant to our Amended and
Restated Certificate of Incorporation, the Board of Directors must
consist of no less than three members, the exact number of which is
determined from time to time by the Board of Directors, divided
into three classes designated Class A, Class B and Class C,
respectively. The Board of Directors has presently fixed the number
of directors at eight. The term of the three Class C Directors will
expire as of the annual meeting of stockholders in 2018, the term
of the two Class A Directors will expire as of the annual meeting
of stockholders in 2019 and the term of the three Class B Directors
will expire as of the annual meeting of stockholders in 2020. Upon
expiration of the terms of the Directors of each class as set forth
above, the terms of their successors in that class will continue
until the end of their terms and until their successors are duly
elected and qualify.
Dividends
Our stockholders are entitled
to receive ratable dividends when, as and if declared by the Board
of Directors out of funds legally available therefor. In the event
of a liquidation, dissolution or winding up of the company after a
business combination, our stockholders are entitled, subject to the
rights of holders of preferred stock, if any, to share ratably in
all assets remaining available for distribution to them after
payment of liabilities and after provision is made for each class
of stock, if any, having preference over the common stock. Our
stockholders have no conversion, preemptive or other subscription
rights. There are no sinking fund or redemption provisions
applicable to the common stock.
We have not paid any cash
dividends on our common stock to date. The payment of cash
dividends will be dependent upon our revenues and earnings, if any,
capital requirements and general financial condition subsequent to
completion of a business combination. The payment of any dividends
will be within the discretion of our then board of directors. It is
the present intention of our board of directors to retain all
earnings, if any, for use in our business operations and,
accordingly, our board does not anticipate declaring any dividends
in the foreseeable future. Moreover, the terms of the
unsecured senior notes we issued in June 2014 and April 2017 place
certain limitations on our ability to pay dividends or make any
distributions on or in respect of shares of our capital stock.
Further, our ability to declare
dividends may be limited by
restrictive covenants if we incur any additional
indebtedness.
No Preemptive, Conversion or Redemption Rights
Our
common stock is not entitled to preemptive rights and is not
subject to conversion or redemption, but the holders of $26 million
of our secured senior convertible promissory notes are entitled to
preemptive rights upon the issuance of common stock or any security
convertible to common stock.
Right to Receive Liquidation Distributions
Upon
our liquidation, dissolution or winding-up, the holders of common
stock are entitled to share in all assets remaining after payment
of all liabilities and the liquidation preferences of any
outstanding preferred stock. Each outstanding share of common stock
is, and all shares of common stock to be issued in this offering
when they are paid for will be, fully paid and
nonassessable.
Anti-Takeover Effects of Delaware Law and Our Amended and Restated
Certificate of Incorporation and Amended and Restated
Bylaws
Certain
provisions of Delaware law and our amended and restated certificate
of incorporation and amended and restated bylaws may have the
effect of delaying, deferring or discouraging another party from
acquiring control of us.
7
Delaware Law
We are subject to the provisions of Section 203 of
the General Corporation Law of the State of Delaware
regulating corporate takeovers. In
general, Section 203 prohibits a Delaware corporation from engaging
in any business combination with any interested stockholder for a
period of three years following the date that the stockholder
became an interested stockholder, unless:
●
the transaction is approved by the board before the date the
interested stockholder attained that status;
●
upon consummation of the transaction that resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced;
or
●
on or after the date the business combination is approved by the
board and authorized at a meeting of stockholders by at least
two-thirds of the outstanding voting stock that is not owned by the
interested stockholder.
Section 203 defines “business combination” to include the following:
●
any merger or consolidation involving the corporation and the
interested stockholder;
●
any sale, transfer, pledge or other disposition of 10% or more of
the assets of the corporation involving the interested
stockholder;
●
subject to certain exceptions, any transaction that results in the
issuance or transfer by the corporation of any stock of the
corporation to the interested stockholder;
●
any transaction involving the corporation that has the effect of
increasing the proportionate share of the stock of any class or
series of the corporation beneficially owned by the interested
stockholder; or
●
the receipt by the interested stockholder of the benefit of any
loans, advances, guarantees, pledges or other financial benefits
provided by or through the corporation.
In
general, Section 203 defines an interested stockholder as any
entity or person beneficially owning 15% or more of the outstanding
voting stock of the corporation and any entity or person affiliated
with or controlling or controlled by any of these entities or
persons.
A
Delaware corporation may opt out of this provision either with an
express provision in its original certificate of incorporation or
in an amendment to its certificate of incorporation or bylaws
approved by its stockholders. We have not opted out of this
provision. Section 203 could prohibit or delay mergers or other
takeover or change in control attempts and, accordingly, may
discourage attempts to acquire us.
Amended and Restated Certificate of Incorporation and Amended and
Restated Bylaws
Our
amended and restated certificate of incorporation and amended and
restated bylaws provide that:
● no
action can be taken by stockholders except at an annual or special
meeting of the stockholders called in accordance with our
bylaws;
● the
approval of holders of a majority of the shares entitled to vote at
an election of directors is required to adopt, amend or repeal our
bylaws or amend or repeal the provisions of our certificate of
incorporation regarding the election and removal of directors and
the ability of stockholders to take action;
●
our
board of directors is expressly authorized to make, alter or repeal
our bylaws;
● stockholders
may not call special meetings of the stockholders or fill vacancies
on the board;
● our
board of directors is divided into three classes serving staggered
three-year terms. This means that only one class of directors will
be elected at each annual meeting of stockholders, with the other
classes continuing for the remainder of their respective
terms;
● our
board of directors is authorized to issue preferred stock without
stockholder approval;
● directors
may only be removed for cause by the holders of majority of the
shares entitled to vote at an election of directors;
and
● we
will indemnify officers and directors against losses that they may
incur in investigations and legal proceedings resulting from their
services to us, which may include services in connection with
takeover defense measures.
Our Transfer Agent
The transfer agent for our
securities and warrant agent for our warrants is Continental Stock
Transfer & Trust Company, 17 Battery Place, New York, New York
10004.
NASDAQ Global Market Listing
The
common stock is listed on the NASDAQ Global Market under the symbol
“GFN.”
8
DESCRIPTION OF PREFERRED STOCK
Our board of directors is authorized, subject to
limitations imposed by Delaware law, to issue up to a total of
1,000,000 shares of preferred stock, par value $.0001. As of
September 17, 2018, there were issued and outstanding 100 shares of Series B 8% Cumulative Preferred
Stock, par value of $0.0001 per share, with a liquidation preference of $1,000 per share
(“Series B Preferred Stock”), held by one stockholder, and 400,000 shares of 9.00% Series C Cumulative
Redeemable Perpetual Preferred Stock, par value of $0.0001 per
share, with a liquidation
preference of $100 per share (“Series C Preferred
Stock”), held by 11 stockholders of
record.
The Series B Preferred Stock is offered primarily
in connection with business combinations. The Series B Preferred
Stock is not convertible into our common stock, has no voting
rights, except as required by Delaware law, and is redeemable at
any time, in whole or in part, at the Company’s option.
Holders of the Series B Preferred Stock are entitled to receive,
when declared by the Company’s Board of Directors, annual
dividends payable quarterly in arrears on the 31st
day of January, July and October and
on the 30th
day of April of each year. In the
event of any liquidation or winding up of the Company, the holders
of the Series B Preferred Stock will have preference to holders of
common stock.
Dividends on the Series C Preferred Stock cumulate
from the date of original issue and are payable on each
31st
day of each January, July and October
and 30th
day of April when, as and if declared
by the Company’s Board of Directors. Commencing on May 17,
2018, the Company may redeem, at its option, the Series C Preferred
Shares, in whole or in part, at a cash redemption price of $100.00
per share, plus any accrued and unpaid dividends to, but not
including, the redemption date. The Series C Preferred Shares have
no mandatory redemption date, are not subject to any sinking fund
or other mandatory redemption, and are not convertible into or
exchangeable for any of the Company’s other securities.
Holders of the Series C Preferred Shares generally will have no
voting rights, except for limited voting rights if dividends
payable on the outstanding Series C Preferred Shares are in arrears
for six or more consecutive or non-consecutive quarters, and under
certain other circumstances. If the Company fails to maintain the
listing of the Series C Preferred Stock on the NASDAQ Stock Market
or other securities exchange for 30 days or more, the per annum
dividend rate will increase by an additional 2.00% per $100.00
stated liquidation value ($2.00 per annum per share) so long as the
listing failure continues. In addition, in the event of any
liquidation or winding up of the Company, the holders of the Series
C Preferred Stock will have preference to holders of common stock
and are pair passu with the Series B Preferred Stock. The Series C
Preferred Stock is listed on the NASDAQ Stock Market under the
symbol “GFNCP.”
Our Board of Directors is authorized to
issue up to 599,900 additional
shares of preferred stock in one or more series, without
stockholder approval, unless stockholder approval is required by
applicable law, by the rules of a stock exchange or quotation
system on which any series of our stock may be listed or quoted or
by the certificate of designation governing the applicable series
of preferred stock. Our Board of Directors is authorized to
establish from time to time the number of shares to be included in
each series and to fix the rights, preferences and privileges of
the shares of each wholly unissued series and any of its
qualifications, limitations or restrictions. Our Board of Directors
can also increase or decrease the number of shares of any series,
but not below the number of shares of that series then outstanding,
without any further vote or action by the
stockholders.
This prospectus describes certain general terms
and provisions of our preferred stock. When we offer to sell a
particular series of preferred stock, we will describe the specific
terms of the securities in a prospectus
supplement. The prospectus supplement
will also indicate whether the general terms and provisions
described in this prospectus apply to the particular series of
preferred stock. The preferred stock will be issued under a
certificate of designations relating to each series of preferred
stock and is also subject to our certificate of incorporation. The
certificate of designations will be filed with the SEC in
connection with an offering of preferred stock.
The
prospectus supplement will describe the terms of any preferred
stock being offered, including:
● the
number of shares and designation or title of the
shares;
● any
liquidation preference per share;
● any
date of maturity;
● any
redemption, repayment or sinking fund provisions;
● any
dividend rate or rates and the dates of payment (or the method for
determining the dividend rates or dates of payment);
● whether
dividends are cumulative or non-cumulative and, if cumulative, the
date from which dividends on the preferred stock will
accumulate;
● any
restriction on the repurchase or redemption of shares by us while
there is any arrearage in the payment of dividends or sinking fund
installments;
● any
voting rights;
● if
other than the currency of the United States, the currency or
currencies, including composite currencies, in which the preferred
stock is denominated and/or in which payments will or may be
payable;
● the
method by which amounts in respect of the preferred stock may be
calculated and any commodities, currencies or indices, or value,
rate or price, relevant to such calculation;
9
● the
procedures for any auction and remarketing, if any, for the
preferred stock;
● whether
the preferred stock is convertible or exchangeable and, if so, the
securities or rights into which the preferred stock is convertible
or exchangeable, and the terms and conditions of conversion or
exchange;
● whether
interests in the preferred stock will be represented by depositary
shares;
● a
discussion of any material or special United States federal income
tax considerations applicable to the preferred stock;
● the
relative ranking and preferences of the preferred stock as to
dividend rights and rights upon the liquidation, dissolution or
winding up of our affairs;
● any
limitations on issuance of any class or series of preferred stock
ranking senior to or on a parity with the class or series of
preferred stock as to dividend rights and rights upon liquidation,
dissolution or winding up of our affairs;
● the
place or places where dividends and other payments on the preferred
stock will be payable; and
● any
additional voting, dividend, liquidation, redemption and other
rights, preferences, privileges, limitations and
restrictions.
All
shares of preferred stock offered will be fully paid and
non-assessable. Any shares of preferred stock that are issued will
have priority over the common stock with respect to dividend or
liquidation rights or both.
The
transfer agent for each series of preferred stock will be described
in the applicable prospectus supplement.
10
DESCRIPTION
OF DEBT SECURITIES
The
following is a general description of the debt securities that we
may offer from time to time. The particular terms of the debt
securities offered by us and the extent, if any, to which the
general provisions described below may apply to those securities
will be described in the applicable prospectus supplement. As you
read this section, please remember that the specific terms of a
debt security as described in the applicable prospectus supplement
will supplement and may modify or replace the general terms
described in this section. If there are any differences between the
applicable prospectus supplement and this prospectus, the
applicable prospectus supplement will control. As a result, the
statements we make in this section may not apply to the debt
securities you purchase.
Senior Notes
On
June 18, 2014, the Company completed the sale of unsecured senior
notes (the “Senior Notes”) in a public offering for an
aggregate principal amount of $72,000,000, and sold an additional
tranche of $5,390,000 of Senior Notes in April 2017. The Senior
Notes were issued in denominations of $25 and integral multiples of
$25 in excess thereof and pursuant to the First Supplemental
Indenture (the “First Supplemental Indenture”) dated as
of June 18, 2014 by and between the Company and Wells Fargo Bank
(“Wells Fargo”). The First Supplemental Indenture
supplements the Indenture entered into by and between the Company
and Wells Fargo, as trustee (the “Trustee”) dated as of
June 18, 2014 (the “Base Indenture” and, together with
the First Supplemental Indenture, the “Indenture”). The
Senior Notes bear interest at the rate of 8.125% per annum, mature
on July 31, 2021 and are not subject to any sinking fund. Interest
on the Senior Notes is payable quarterly in arrears on January 31,
April 30, July 31 and October 31, commencing on July 31,
2014.
The
Senior Notes rank equally in right of payment with all of the
Company’s existing and future unsecured senior debt and
senior in right of payment to all of its existing and future
subordinated debt. The Senior Notes are effectively subordinated to
any of the Company’s existing and future secured debt, to the
extent of the value of the assets securing such debt. The Senior
Notes are structurally subordinated to all existing and future
liabilities of the Company’s subsidiaries and are not
guaranteed by any of the Company’s subsidiaries.
Prior to July 31, 2017, the Company could, at its
option, redeem the Senior Notes in whole or in part upon the
payment of 100% of the principal amount of the Senior Notes being
redeemed plus any additional amount required by the Indenture. In
addition, the Company could from time to time redeem up to 35% of
the aggregate outstanding principal amount of the Senior Notes
before July 31, 2017 with the net cash proceeds from certain equity
offerings at a redemption price of 108.125% of the principal amount
plus accrued and unpaid interest. If the Company sells certain of
its assets or experience specific kinds of changes in control, as
defined, it must offer to purchase the Senior Notes. The Company
may, at its option, at any time and from time to time, on or after
July 31, 2017, redeem the Senior Notes in whole or in part. The
Senior Notes will be redeemable at a redemption price initially
equal to 106.094% of the principal amount of the Senior Notes (and
which declines on each year on July 31st) plus accrued and unpaid interest to the date of
redemption. On and after any redemption date, interest will cease
to accrue on the redeemed Senior Notes.
The
Indenture contains covenants which, among other things, limit the
Company’s ability to make certain payments, to pay dividends
and to incur additional indebtedness if the incurrence of such
indebtedness would cause the company’s consolidated fixed
charge coverage ratio, as defined in the Indenture, to be below 2.0
to 1.0.
The
Senior Notes are listed on the NASDAQ Stock Market under the symbol
“GFNSL.”
Debt Securities in this Offering
Our
debt securities, consisting of notes, debentures and other
evidences of indebtedness, may be issued from time to time in one
or more series pursuant to, in the case of senior debt securities,
the second supplemental indenture to be entered into between us and
a trustee to be named therein, and in the case of subordinated debt
securities, a subordinated indenture to be entered into between us
and a trustee to be named therein.
Because
the following is only a summary of selected provisions of the
indentures and the debt securities, it does not contain all
information that may be important to you. This summary is not
complete and is qualified in its entirety by reference to the Base
Indenture and any supplemental indentures thereto or
officer’s certificate or board resolution related thereto. We
urge you to read the Base Indenture, the First Supplemental
Indenture and any supplemental indenture for the debt securities
offered in a prospectus supplement (“Offering
Indenture”) because the foregoing indentures, and not this
description, define the rights of the holders of the debt
securities. If senior debt securities are offered, the Offering
Indenture will be substantially in the form of the second
supplemental indenture filed as an exhibit to this registration
statement of which this prospectus is a part. The terms of our debt
securities will include those set forth in the Indenture and any
Offering Indenture and those made a part of the indentures by the
Trust Indenture Act of 1939, as amended (the “Trust Indenture
Act”).
Unless
we inform you otherwise in the prospectus supplement, “Senior
Debt” will mean all of our indebtedness, including
guarantees, unless the indebtedness states that it is not senior to
the subordinated debt securities.
General
Neither
the Indenture nor any Offering Indenture will limit the amount of
debt securities that may be issued under those indentures, and none
of the indentures limit the amount of other unsecured debt or
securities that we may issue. We may issue debt securities under
the Indenture or an Offering Indenture from time to time in one or
more series.
We are
not obligated to issue all debt securities of one series at the
same time and, unless otherwise provided in the prospectus
supplement, we may reopen a series, without the consent of the
holders of the debt securities of that series, for the issuance of
additional debt securities of that series. Additional debt
securities of a particular series will have the same terms and
conditions as outstanding debt securities of such series, except
that the additional debt securities may have a different date of
original issuance, offering price and first interest payment date,
and will be consolidated with, and form a single series with, such
outstanding debt securities.
11
When
we refer to “debt securities” or a “series of
debt securities,” we mean, respectively, debt securities or a
series of debt securities issued under the applicable indenture.
When we refer to a prospectus supplement, we mean the prospectus
supplement describing the specific terms of the applicable debt
security. The terms used in a prospectus supplement will have the
meanings described in this prospectus, unless otherwise
specified.
The
senior debt securities will constitute our unsecured and
unsubordinated indebtedness and will rank equally in right of
payment with all of our other unsecured and unsubordinated
indebtedness and senior in right of payment to all of our
subordinated indebtedness outstanding from time to time. The debt
securities will be effectively subordinated to, and thus have a
junior position to, any secured indebtedness we may have with
respect to the assets securing that indebtedness. The subordinated
debt securities will constitute our unsecured and subordinated
obligations and will rank junior to all of our senior indebtedness
and may rank equally with or senior to other subordinated
indebtedness we may issue from time to time.
The
debt securities will effectively rank junior to all liabilities of
our subsidiaries. Accordingly, any debt securities will be
effectively subordinated to creditors, including trade creditors
and preferred stockholders, if any, of such
subsidiaries.
Unless
we inform you otherwise in the prospectus supplement, no Offering
Indenture will contain any covenants or other provisions designed
to protect holders of the debt securities in the event we
participate in a highly leveraged transaction. In addition, unless
we inform you otherwise in the prospectus supplement, the Offering
Indenture will not contain provisions that give holders of the debt
securities the right to require us to repurchase their securities
in the event of a decline in our credit rating for any reason,
including as a result of a takeover, recapitalization or similar
restructuring or otherwise.
The
prospectus supplement relating to any series of debt securities
being offered will include specific terms relating to the offering.
These terms will include some or all of the following:
●
whether the debt
securities will be senior or subordinated debt
securities;
●
the title of the
debt securities;
●
the total principal
amount of the debt securities;
●
whether we will
issue the debt securities in individual certificates to each holder
or in the form of temporary or permanent global securities held by
a depositary on behalf of holders and the name of the depositary
for the debt securities, if other than The Depository Trust Company
(“DTC”), and any circumstances under which the holder
may request securities in non-global form, if we choose not to
issue the debt securities in book-entry form only;
●
the date or dates
on which the principal of and any premium on the debt securities
will be payable;
●
any interest rate,
the date from which any such interest will accrue, the interest
payment dates on which any such interest will be payable and the
record dates for any such interest payments;
●
whether and under
what circumstances we will pay any additional amounts with respect
to the debt securities;
●
the place or places
where payments on the debt securities will be payable;
●
any provisions for
optional redemption or early repayment;
●
any sinking fund or
other provisions that would obligate us to redeem, purchase or
repay the debt securities;
●
the denominations
in which we will issue the debt securities if other than $2,000 and
integral multiples of $1,000 in excess thereof;
●
whether payments on
the debt securities will be payable in foreign currency or another
form and whether payments will be payable by reference to any index
or formula;
●
the portion of the
principal amount of debt securities that will be payable if the
maturity is accelerated, if other than the entire principal
amount;
●
whether the
provisions described below under the heading
“—Defeasance and Discharge” apply to the debt
securities;
●
any changes or
additions to the events of default or covenants described in this
prospectus;
●
any restrictions or
other provisions relating to the transfer or exchange of debt
securities;
●
any terms for the
conversion or exchange of the debt securities for other
securities;
●
with respect to the
indenture that governs the offering of the subordinated debt
securities, any changes to the subordination provisions for the
subordinated debt securities; and
●
any other terms of
the debt securities, whether in addition to, or by modification or
deletion of, the terms described herein.
We
may sell the debt securities at a discount, which may be
substantial, below their stated principal amount.
These
debt securities may bear no interest or interest at a rate that at
the time of issuance is below market rates. If we sell these debt
securities, we will describe in the prospectus supplement any
material United States (“U.S.”) federal income tax
consequences and other special considerations.
If
we sell any of the debt securities for any foreign currency or if
payments on the debt securities are payable in any foreign
currency, we will describe in the prospectus supplement the
restrictions, elections, tax consequences, specific terms and other
information relating to those debt securities and the foreign
currency.
12
Events of Default
Unless
we inform you otherwise in the prospectus supplement, the following
are events of default with respect to a series of debt
securities:
●
our failure to pay
any installment of interest on or any additional amounts with
respect to any debt security of that series when due and such
default continues for 30 days or longer, whether or not, in the
case of subordinated debt securities, such payment is prohibited by
the subordination provisions of the indenture governing the
subordinated debt securities;
●
our failure to pay
the principal of or any premium on any debt security of that series
when due, whether or not, in the case of subordinated debt
securities, such payment is prohibited by the subordination
provisions of the indenture governing the subordinated debt
securities;
●
our failure to
comply with any covenant or agreement in that series of debt
securities or the applicable indenture for 60 days after written
notice by the trustee or by the holders of at least 25% in
principal amount of the outstanding debt securities of that series
issued under that indenture (except for our failure to comply with
the covenant prohibiting certain consolidations, mergers and sales
of assets);
●
the failure to pay
at final maturity (giving effect to any applicable grace periods
and any extensions thereof) the stated principal amount of any of
our indebtedness, or the acceleration of the final stated maturity
of any such indebtedness (which acceleration is not rescinded,
annulled or otherwise cured within 20 days of receipt of notice of
any such acceleration) if the aggregate principal amount of such
indebtedness, together with the principal amount of any other such
indebtedness in default for failure to pay principal at final
stated maturity or which has been accelerated (in each case with
respect to which the 20-day period described above has elapsed),
aggregates $10.0 million or more at any time;
●
one or more
judgments in an aggregate amount in excess of $10.0 million remain
undischarged, unpaid or unstayed for a period of 60 days after the
judgment or judgments become final and non-appealable;
●
specified events
involving bankruptcy, insolvency or reorganization of the Company
or any subsidiary;
●
our failure to
deposit any sinking fund payment, when due, in respect of any debt
security of that series, whether or not, in the case of
subordinated debt securities, such deposit is prohibited by the
subordination provisions of the indenture governing the
subordinated debt securities; and
●
any other event of
default provided for in that series of debt
securities.
We
may change, eliminate or add to the events of default with respect
to any particular series or any particular debt security or debt
securities within a series, as indicated in the applicable
prospectus supplement. A default under one series of debt
securities will not necessarily be a default under any other
series.
If
an event of default relating to certain events of our bankruptcy or
insolvency occurs, all then outstanding debt securities of that
series will become due and payable immediately without further
action or notice. If any other event of default for any series of
debt securities occurs and is continuing, the trustee may and, at
the written direction of the holders of at least 25% in aggregate
principal amount of the outstanding debt securities of that series
shall, declare all of those debt securities to be due and payable
immediately by notice in writing to us and, in case of a notice by
holders, also to the trustee specifying the respective event of
default and that it is a notice of acceleration.
Subject
to certain limitations, holders of a majority in aggregate
principal amount of the outstanding debt securities of any series
may direct the trustee in its exercise of any trust or power with
respect to that series. The trustee may withhold from holders of
the debt securities of any series notice of any continuing default
or event of default for such series if it determines that
withholding notice is in their interest, except a default or event
of default relating to the payment of principal, interest, premium
or additional amounts, if any.
Subject
to the provisions of the applicable indenture relating to the
duties of the trustee, in case an event of default for any series
occurs and is continuing, the trustee will be under no obligation
to exercise any of the rights or powers under the indenture at the
request or direction of any holders of debt securities of that
series unless such holders have offered to the trustee indemnity or
security satisfactory to it against any loss, liability or expense.
Except to enforce the right to receive payment of principal,
premium or additional amounts, if any, or interest when due, no
holder of debt securities of a series may pursue any remedy with
respect to the indenture or the debt securities
unless:
●
such holder has
previously given the trustee notice that an event of default is
continuing with respect to that series;
●
holders of at least
25% in aggregate principal amount of the debt securities of that
series have requested the trustee to pursue the
remedy;
●
such holders have
offered the trustee security or indemnity satisfactory to it
against any loss, liability or expense;
●
the trustee has not
complied with such request within 60 days after the receipt of the
request and the offer of security or indemnity; and
●
holders of a
majority in aggregate principal amount of the debt securities of
that series have not given the trustee a direction inconsistent
with such request within such 60-day period.
Holders
of a debt security are entitled at any time, however, to bring a
lawsuit for the payment of money due on a debt security on or after
its stated maturity (or, if a debt security is redeemable, on or
after its redemption date).
The
holders of a majority in aggregate principal amount of the debt
securities of any series by notice to the trustee may, on behalf of
the holders of all of the debt securities of that series, rescind
an acceleration or waive any existing default or event of default
for such series and its consequences under the indenture except a
continuing default or event of default in the payment of interest,
additional amounts or premium on, or the principal of, the debt
securities.
With
respect to subordinated debt securities, all the remedies available
upon the occurrence of an event of default under the subordinated
debt indenture will be subject to the restrictions on the
subordinated debt securities described below under
“—Subordination.”
Book-entry
and other indirect owners should consult their banks or brokers for
information on how to give notice or direction to or make a request
for the trustee and how to declare or cancel an acceleration of the
maturity.
We
are required to deliver to the trustee annually a statement
regarding compliance with the indenture. Upon our becoming aware of
any default or event of default, we are required within five
business days to deliver to the trustee a statement specifying such
default or event of default.
13
Subordination
Under
the Offering Indenture, payment of the principal of and any premium
and interest on the subordinated debt securities will generally be
subordinated and junior in right of payment to the prior payment in
full of all Senior Debt. Unless we inform you otherwise in the
prospectus supplement, we may not make any payment of principal of
or any premium or interest on the subordinated debt securities
if:
●
we fail to pay the
principal, interest or premium on any Senior Debt when due;
or
●
any other event of
default (a “non-payment default”) occurs with respect
to any Senior Debt that we have designated, if the non-payment
default allows the holders of that Senior Debt to accelerate the
maturity of the Senior Debt they hold.
Unless
we inform you otherwise in the prospectus supplement, a non-payment
default will prevent us from paying the subordinated debt
securities only for up to 179 days after holders of the designated
Senior Debt give the trustee for the subordinated debt securities
notice of the non-payment default. The subordination will not
affect our obligation, which will be absolute and unconditional, to
pay, when due, the principal of and any premium and interest on the
subordinated debt securities. In addition, the subordination will
not prevent the occurrence of any default under the indenture
governing the subordinated debt securities. Unless we inform you
otherwise in the prospectus supplement, the indenture governing the
subordinated debt securities will not limit the amount of Senior
Debt that we may incur. As a result of the subordination of the
subordinated debt securities, if we become insolvent, holders of
subordinated debt securities may receive less on a proportionate
basis than other creditors.
Modification and Waiver
Except
as provided in the next four succeeding paragraphs, each indenture
and the debt securities issued under each indenture may be amended
or supplemented with the consent of the holders of at least a
majority in aggregate principal amount of the then outstanding debt
securities of each series affected by the change, voting as
separate classes for this purpose, and any existing default or
event of default or compliance with any provision of the indenture
or the debt securities may be waived with the consent of the
holders of a majority in aggregate principal amount of the then
outstanding debt securities of each series affected by the waiver,
voting as separate classes for this purpose, in each case, except
as may otherwise be provided pursuant to such indenture for all or
any particular debt securities of any series. Without the consent
of each holder of debt securities of the series affected, an
amendment, supplement or waiver may not (with respect to any debt
securities of such series held by a non-consenting
holder):
●
reduce the
principal amount of debt securities whose holders must consent to
an amendment, supplement or waiver;
●
reduce the
principal of any debt security or change its stated maturity, or
alter the provisions relating to the redemption or repurchase of
any debt securities;
●
reduce the rate of
or change the time for payment of interest on any debt
security;
●
waive a default or
event of default in the payment of principal of, or interest or
premium, or any additional amounts, if any, on, the debt securities
(except a rescission of acceleration of the debt securities by the
holders of at least a majority in aggregate principal amount of the
then outstanding debt securities of that series and a waiver of the
payment default that resulted from such acceleration);
●
make payments on
any debt security payable in currency other than as originally
stated in the debt security;
●
make any change in
the provisions of the indenture relating to waivers of past
defaults or the rights of holders of debt securities to receive
payments of principal of, or interest or premium, if any, on the
debt securities;
●
waive a redemption
payment with respect to any debt securities;
●
impair a
holder’s right to sue for payment of any amount due on its
debt security;
●
make any change in
the preceding amendment, supplement and waiver provisions;
or
●
with respect to the
indenture governing the subordinated debt securities, modify the
provisions relating to the subordination of any subordinated debt
security in a manner adverse to the holder of that security, in
each case, except as may otherwise be provided pursuant to such
indenture for all or any particular debt securities of any
series.
We
may not amend the indenture governing the subordinated debt
securities to alter the subordination of any outstanding
subordinated debt securities without the written consent of each
holder of Senior Debt then outstanding who would be adversely
affected (or the group or representative thereof authorized or
required to consent thereto pursuant to the instrument creating or
evidencing, or pursuant to which there is outstanding, such Senior
Debt), except as may otherwise be provided pursuant to such
indenture for all or any particular debt securities of any series.
In addition, we may not modify the subordination provisions of the
indenture related to subordinated debt securities in a manner that
would adversely affect the subordinated debt securities of any one
or more series then outstanding in any material respect, without
the consent of the holders of a majority in aggregate principal
amount of each affected series then outstanding, voting as separate
classes, except as may otherwise be provided pursuant to such
indenture for all or any particular debt securities of any
series.
Book-entry
and other indirect owners should consult their banks or brokers for
information on how approval may be granted or denied if we seek to
change an indenture or any debt securities or request a
waiver.
14
We
and the trustee may supplement or amend each indenture or the debt
securities without notice to or the consent of any holders of debt
securities issued under that indenture in certain circumstances,
including:
●
to cure any
ambiguity, defect or inconsistency;
●
to provide for
uncertificated debt securities in addition to or in place of
certificated debt securities;
●
to establish the
form or terms of debt securities of any series as permitted by the
applicable indenture;
●
to make any change
that would provide any additional rights or benefits to the holders
of debt securities or that does not materially adversely affect the
legal rights under the indenture of any such holder;
●
to comply with
requirements of the SEC in order to maintain the qualification of
the indenture under the Trust Indenture Act;
●
to add additional
events of default with respect to all or any series of debt
securities;
●
to change or
eliminate any of the provisions of the indenture; provided that any
such change or elimination will become effective only when there is
no outstanding debt security of any series created prior to the
execution of such amendment or supplemental indenture that is
adversely affected in any material respect by such change in or
elimination of such provision;
●
to supplement any
provision of the indenture to permit or facilitate the defeasance
and discharge of any series of debt securities so long as any
action does not adversely affect the interest of holders of debt
securities of that or any other series in any material
respect;
●
to secure the debt
securities;
●
to evidence and
provide for the acceptance under the indenture of a successor
trustee, each as permitted under the indenture; or
●
to conform the text
of the indenture or any debt securities to the description thereof
in any prospectus or prospectus supplement of us with respect to
the offer and sale of such debt securities, to the extent that such
provision is inconsistent with a provision of the indenture or the
debt securities, in each case, except as may otherwise be provided
pursuant to such indenture for all or any particular debt
securities of any series, as set forth in an officer’s
certificate.
Defeasance and Discharge
Defeasance
When
we use the term defeasance, we mean discharge from some or all of
our obligations under an indenture. If we deposit with the trustee
under an indenture any combination of money or government
securities sufficient, in the written opinion of an independent
firm of certified public accountants, to make payments on the debt
securities of a series issued under that indenture on the dates
those payments are due, then, at our option, either of the
following will occur:
●
we will be
discharged from our obligations with respect to the debt securities
of that series (“legal defeasance”); or
●
we will no longer
have any obligation to comply with specified restrictive covenants
with respect to the debt securities of that series and other
specified covenants under the applicable indenture, and the related
events of default will no longer apply (“covenant
defeasance”).
If
a series of debt securities is defeased, the holders of the debt
securities of that series will not be entitled to the benefits of
the applicable indenture, except for obligations to register the
transfer or exchange of debt securities, replace stolen, lost or
mutilated debt securities, maintain paying agencies and hold money
for payment in trust. In the case of covenant defeasance, our
obligation to pay principal, premium and interest on the debt
securities will also survive. Unless we inform you otherwise in the
prospectus supplement, we will be required to deliver to the
trustee an opinion of counsel that the deposit and related
defeasance would not cause the holders of the debt securities to
recognize income, gain or loss for federal income tax purposes and
that the holders would be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have
been the case if the deposit and related defeasance had not
occurred. If we elect legal defeasance, that opinion of counsel
must be based upon a ruling from the U.S. Internal Revenue Service
or a change in law to that effect.
Satisfaction and Discharge
An
indenture will be discharged and will cease to be of further effect
with respect to the debt securities of a series issued under that
indenture, except for our obligation to register the transfer of
and exchange debt securities of that series, when:
●
either:
●
all debt securities
of that series that have been authenticated, except lost, stolen or
destroyed debt securities that have been replaced or paid and debt
securities for whose payment money has been deposited in trust and
thereafter repaid to us, have been delivered to the trustee for
cancellation; or
●
all debt securities
of that series that have not been delivered to the trustee for
cancellation have become due and payable by reason of the mailing
of a notice of redemption or otherwise or will become due and
payable within one year, and we have irrevocably deposited or
caused to be deposited with the trustee as trust funds in trust
solely for the benefit of the holders, cash in U.S. dollars,
non-callable government securities, or a combination of cash in
U.S. dollars and non-callable government securities, in amounts as
will be sufficient, without consideration of any reinvestment of
interest, to pay and discharge the entire indebtedness on the debt
securities of that series not delivered to the trustee for
cancellation for principal, premium and accrued interest to the
date of maturity or redemption;
●
no default or event
of default has occurred and is continuing on the date of the
deposit (other than a default or event of default resulting from
the borrowing of funds to be applied to such deposit) and the
deposit will not result in a breach or violation of, or constitute
a default under, any other instrument to which we or any subsidiary
is a party or by which we or any subsidiary is bound;
and
●
we have delivered
irrevocable instructions to the trustee under the applicable
indenture to apply the deposited money toward the payment of the
debt securities at maturity or on the redemption date, as the case
may be.
15
In
addition, we must deliver an officers’ certificate and an
opinion of counsel to the trustee stating that all conditions
precedent to satisfaction and discharge have been
satisfied.
Governing Law
New
York law governs the Indenture and will govern the Offering
Indenture and the debt securities, without regard to conflicts of
laws principles thereof.
The Trustee
Wells
Fargo Bank, National Association is the trustee under the Base
Indenture. We have banking relationships with Wells Fargo Bank,
National Association or its affiliates in the ordinary course of
business. The trustee under the Offering Indenture will be named in
the applicable prospectus supplement.
16
DESCRIPTION OF WARRANTS
We
may issue warrants to purchase our debt or equity securities or
securities of third parties or other rights, including rights to
receive payment in cash or securities based on the value, rate or
price of one or more specified commodities, currencies, securities
or indices, or any combination of the foregoing. Warrants may be
issued independently or together with any other securities and may
be attached to, or separate from, such securities. Each series of
warrants will be issued under a separate warrant agreement to be
entered into between us and a warrant agent. The terms of any
warrants to be issued and a description of the material provisions
of the applicable warrant agreement will be set forth in the
applicable prospectus supplement.
The
applicable prospectus supplement will describe the following terms
of any warrants in respect of which this prospectus is being
delivered:
●
the
title of such warrants;
●
the
aggregate number of such warrants;
●
the
price or prices at which such warrants will be issued;
●
the
currency or currencies in which the price of such warrants will be
payable;
●
the
securities or other rights, including rights to receive payment in
cash or securities based on the value, rate or price of one or more
specified commodities, currencies, securities or indices, or any
combination of the foregoing, purchasable upon exercise of such
warrants;
●
the
price at which and the currency or currencies in which the
securities or other rights purchasable upon exercise of such
warrants may be purchased;
●
the
date on which the right to exercise such warrants shall commence
and the date on which such right shall expire;
●
if
applicable, the minimum or maximum amount of such warrants which
may be exercised at any one time;
●
provision
for changes to or adjustments in the exercise price of such
warrants, if any;
●
if
applicable, the designation and terms of the securities with which
such warrants are issued and the number of such warrants issued
with each such security;
●
if applicable, the
date on and after which such warrants and the related securities
will be separately transferable;
●
the terms of any
rights to redeem or call the warrants;
●
information with
respect to book-entry procedures, if any;
●
if applicable, a
discussion of any material United States Federal income tax
considerations; and
●
any other terms of
such warrants, including terms, procedures and limitations relating
to the exchange and exercise of such warrants.
Unless
otherwise provided in the applicable prospectus supplement, holders
of warrants will not be entitled, by virtue of being such holders,
to vote, consent, receive dividends, receive notice as stockholders
with respect to any meeting of stockholders for the election of our
directors or any other matter, or to exercise any rights whatsoever
as stockholders.
Each
warrant will entitle the holder of the warrant to purchase for cash
at the exercise price provided in the applicable prospectus
supplement the principal amount of debt securities or shares of
preferred stock or shares of common stock being offered. Holders
may exercise warrants at any time up to the close of business on
the expiration date provided in the applicable prospectus
supplement. After the close of business on the expiration date,
unexercised warrants are void.
Holders
may exercise warrants as described in the prospectus supplement
relating to the warrants being offered. Upon receipt of payment and
the warrant certificate properly completed and duly executed at the
corporate trust office of the warrant agent or any other office
indicated in the prospectus supplement, we will, as soon as
practicable, forward the debt securities, shares of preferred stock
or shares of common stock purchasable upon the exercise of the
warrant. If less than all of the warrants represented by the
warrant certificate are exercised, we will issue a new warrant
certificate for the remaining warrants.
17
FORMS OF SECURITIES
Each debt security and warrant will be represented
either by a certificate issued in definitive form to a particular
investor or by one or more global securities representing the
entire issuance of securities. Unless the applicable
prospectus supplement provides otherwise, certificated securities in definitive form and global
securities will be issued in registered form. Definitive securities
name you or your nominee as the owner of the security, and in order
to transfer or exchange these securities or to receive payments
other than interest or other interim payments, you or your nominee
must physically deliver the securities to the trustee, registrar,
paying agent or other agent, as applicable. Global securities name
a depositary or its nominee as the owner of the debt securities or
warrants represented by these global securities. The depositary
maintains a computerized system that will reflect each
investor’s beneficial ownership of the securities through an
account maintained by the investor with its broker/dealer, bank,
trust company or other representative, as we explain more fully
below.
Global Securities
Registered Global
Securities. We may issue the
registered debt securities and warrants in the form of one or more
fully registered global securities that will be deposited with a
depositary or its nominee identified in the applicable prospectus
supplement and registered in the name of that depositary or
nominee. In those cases, one or more registered global securities
will be issued in a denomination or aggregate denominations equal
to the portion of the aggregate principal or face amount of the
securities to be represented by registered global securities.
Unless and until it is exchanged in whole for securities in
definitive registered form, a registered global security may not be
transferred except as a whole by and among the depositary for the
registered global security, the nominees of the depositary or any
successors of the depositary or those nominees.
If
not described below, any specific terms of the depositary
arrangement with respect to any securities to be represented by a
registered global security will be described in the prospectus
supplement relating to those securities. We anticipate that the
following provisions will apply to all depositary
arrangements.
Ownership
of beneficial interests in a registered global security will be
limited to persons, called participants, that have accounts with
the depositary or persons that may hold interests through
participants. Upon the issuance of a registered global security,
the depositary will credit, on its book-entry registration and
transfer system, the participants’ accounts with the
respective principal or face amounts of the securities beneficially
owned by the participants. Any dealers, underwriters or agents
participating in the distribution of the securities will designate
the accounts to be credited. Ownership of beneficial interests in a
registered global security will be shown on, and the transfer of
ownership interests will be effected only through, records
maintained by the depositary, with respect to interests of
participants, and on the records of participants, with respect to
interests of persons holding through participants. The laws of some
states may require that some purchasers of securities take physical
delivery of these securities in definitive form. These laws may
impair your ability to own, transfer or pledge beneficial interests
in registered global securities.
So
long as the depositary, or its nominee, is the registered owner of
a registered global security, that depositary or its nominee, as
the case may be, will be considered the sole owner or holder of the
securities represented by the registered global security for all
purposes under the applicable indenture or warrant agreement.
Except as described below, owners of beneficial interests in a
registered global security will not be entitled to have the
securities represented by the registered global security registered
in their names, will not receive or be entitled to receive physical
delivery of the securities in definitive form and will not be
considered the owners or holders of the securities under the
applicable indenture or warrant agreement. Accordingly, each person
owning a beneficial interest in a registered global security must
rely on the procedures of the depositary for that registered global
security and, if that person is not a participant, on the
procedures of the participant through which the person owns its
interest, to exercise any rights of a holder under the applicable
indenture or warrant agreement. We understand that under existing
industry practices, if we request any action of holders or if an
owner of a beneficial interest in a registered global security
desires to give or take any action that a holder is entitled to
give or take under the applicable indenture or warrant agreement,
the depositary for the registered global security would authorize
the participants holding the relevant beneficial interests to give
or take that action, and the participants would authorize
beneficial owners owning through them to give or take that action
or would otherwise act upon the instructions of beneficial owners
holding through them.
Principal,
premium, if any, and interest payments on debt securities and any
payments to holders with respect to warrants represented by a
registered global security registered in the name of a depositary
or its nominee will be made to the depositary or its nominee, as
the case may be, as the registered owner of the registered global
security. None of General Finance Corporation, the trustees, the
warrant agents or any other agent of General Finance Corporation,
agent of the trustees or agent of the warrant agents will have any
responsibility or liability for any aspect of the records relating
to payments made on account of beneficial ownership interests in
the registered global security or for maintaining, supervising or
reviewing any records relating to those beneficial ownership
interests.
We
expect that the depositary for any of the securities represented by
a registered global security, upon receipt of any payment of
principal, premium, interest or other distribution of underlying
securities or other property to holders on that registered global
security, will immediately credit participants’ accounts in
amounts proportionate to their respective beneficial interests in
that registered global security as shown on the records of the
depositary. We also expect that payments by participants to owners
of beneficial interests in a registered global security held
through participants will be governed by standing customer
instructions and customary practices, as is now the case with the
securities held for the accounts of customers in bearer form or
registered in “street name,” and will be the
responsibility of those participants.
If the depositary for any of these securities represented by a
registered global security is at any time unwilling or unable to
continue as depositary or ceases to be a clearing agency registered
under the Securities Exchange Act of 1934, as amended,
and a successor depositary registered
as a clearing agency under the Securities Exchange Act of
1934, as amended, is not appointed by
us within 90 days, we will issue securities in definitive form in
exchange for the registered global security that had been held by
the depositary. Any securities issued in definitive form in
exchange for a registered global security will be registered in the
name or names that the depositary gives to the relevant trustee or
warrant agent or other relevant agent of ours or theirs. It is
expected that the depositary’s instructions will be based
upon directions received by the depositary from participants with
respect to ownership of beneficial interests in the registered
global security that had been held by the
depositary.
18
PLAN OF DISTRIBUTION
General
We
may sell the securities offered through this prospectus in any one
or more of the following ways:
●
through
underwriters or dealers;
●
through
agents;
●
directly
to purchasers;
●
in
“at the market offerings” to or through a market maker
or into an existing trading market, or a securities exchange or
otherwise;
●
in transactions not involving market makers or
established trading markets, including direct sales or privately
negotiated transactions; or
●
through
a combination of any of these methods of sale.
In
addition, we may enter into option or other types of transactions
that require us or them to deliver securities to a broker-dealer,
who will then resell or transfer the securities under this
prospectus. We may enter into hedging transactions with respect to
our securities. For example, we may:
●
enter
into transactions with a broker-dealer or affiliate thereof in
connection with which such broker-dealer or affiliate will engage
in short sales of the securities pursuant to this prospectus, in
which case such broker-dealer or affiliate may use securities
received from us to close out its short positions;
●
sell
securities short and redeliver such securities to close out our
short positions;
●
enter
into option or other types of transactions that require us to
deliver securities to a broker-dealer or an affiliate thereof, who
will then resell or transfer the securities under this prospectus;
or
●
loan
or pledge the securities to a broker-dealer or an affiliate
thereof, who may sell the loaned securities or, in an event of
default in the case of a pledge, sell the pledged securities
pursuant to this prospectus.
The
securities described in this prospectus may be distributed at a
fixed price or prices, which may be changed, market prices
prevailing at the time of sale, prices related to the prevailing
market prices, or negotiated prices. Any of the prices may
represent a discount from the prevailing market
prices.
At
the time that any particular offering of securities is made, to the
extent required by the Securities Act, a prospectus supplement will
be distributed setting forth the terms of the offering, including
the aggregate amount of securities being offered; the purchase
price or initial public offering price of the securities; the names
of any underwriters, dealers or agents; the net proceeds to us from
the sale of the securities; any delayed delivery arrangements; any
underwriting discounts, commissions and other items constituting
compensation from us; any discounts, commissions or concessions
allowed or re-allowed or paid to dealers, and any commissions paid
to agents.
Market Making and Stabilization
There
is no established trading market for any security other than our
common stock, which is listed on the NASDAQ Global Market under the symbol
“GFN,” our 9%
Series C Cumulative Redeemable Perpetual Preferred Stock which is
listed on the NASDAQ Global Market under the symbol
“GFNCP” and our Senior Notes which are listed on the
NASDAQ Global Market under the symbol “GFNSL.” The
securities described in this prospectus may or may not be listed on
a national securities exchange or traded in the over-the-counter
market, as set forth in the applicable prospectus
supplement.
If
the securities are traded after their initial issuance, they may
trade at a discount from their initial offering price, depending
upon prevailing interest rates, the market for similar securities
and other factors. While it is possible that an underwriter could
inform us that it intends to make a market in the securities, such
underwriter would not be obligated to do so, and any such market
making could be discontinued at any time without notice. Therefore,
we cannot assure you as to whether an active trading market will
develop for the securities.
If
a prospectus supplement so indicates, underwriters, brokers or
dealers, in compliance with applicable law, may engage in
transactions that stabilize, maintain or otherwise affect the
market price of the securities, which may be higher than the price
that might otherwise prevail in the open market.
Underwriters and Agents
If
underwriters are used in the sale, the underwriters will acquire
the securities for their own account for resale to the public,
either on a firm commitment basis or a best efforts basis. The
underwriters may resell the securities from time-to-time in one or
more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time
of sale. Underwriters may offer securities to the public either
through underwriting syndicates represented by one or more managing
underwriters or directly by one or more firms acting as
underwriters. Unless we inform you otherwise in the prospectus
supplement, the obligations of the underwriters to purchase the
securities will be subject to certain conditions. The underwriters
may change from time-to-time any initial public offering price and
any discounts or concessions allowed or re-allowed or paid to
dealers.
We
may also sell the securities through agents designated from
time-to-time. In the prospectus supplement, we will name any agent
involved in the offer or sale of the offered securities, and we
will describe any commissions payable to the agent. Unless we
inform you otherwise in the prospectus supplement, any agent will
agree to use its reasonable best efforts to solicit purchases for
the period of its appointment.
19
Dealers
If
dealers are used in the sale of securities, we will sell the
securities to them as principals. The dealers may then resell those
securities to the public at varying prices determined by the
dealers at the time of resale. We will include in the prospectus
supplement the names of the dealers and the terms of the
transaction.
Direct Sales
Securities
may also be sold directly by us. In this case, no underwriters or
agents would be involved.
Institutional Purchasers
We
may sell the securities directly to institutional investors or
others who may be deemed to be underwriters within the meaning of
the Securities Act with respect to any sale of those securities. We
will describe the terms of any such sales in the prospectus
supplement.
Subscription Offerings
We
may also make direct sales through subscription rights distributed
to our existing stockholders on a pro rata basis, which may or may
not be transferable. In any distribution of subscription rights to
our stockholders, if all of the underlying securities are not
subscribed for, we may then sell the unsubscribed securities
directly to third parties or may engage the services of one or more
underwriters, dealers or agents, including standby underwriters, to
sell the unsubscribed securities to third parties.
Underwriting Compensation
We
will bear costs relating to all of the securities being registered
under this registration statement of which this prospectus forms a
part.
Any
broker-dealers or other persons acting on our behalf that
participate with us in the distribution of the securities may be
deemed to be underwriters and any commissions received or profit
realized by them on the resale of the securities may be deemed to
be underwriting discounts and commissions under the Securities Act.
As of the date of this prospectus, we are not a party to any
agreement, arrangement or understanding between any broker or
dealer and us with respect to the offer or sale of the securities
pursuant to this prospectus.
Pursuant
to a requirement by the Financial Industry Regulatory Authority, or
FINRA, the maximum commission or discount to be received by any
FINRA member or independent broker/dealer may not be greater than
eight percent (8%) of the gross proceeds received by us for the
sale of any securities being registered pursuant to SEC Rule 415
under the Securities Act. If more than 5% of the net proceeds of
any offering of securities made under this prospectus will be
received by a FINRA member participating in the offering or its
affiliates or associated persons of such FINRA member, the offering
will be conducted in accordance with FINRA Conduct Rule
5110(h).
Indemnification; Other Relationships
We
may have agreements with agents, underwriters, dealers and
remarketing firms to indemnify them against certain civil
liabilities, including liabilities under the Securities Act.
Agents, underwriters, dealers and remarketing firms, and their
affiliates, may engage in transactions with, or perform services
for, us in the ordinary course of business. This includes
commercial banking and investment banking
transactions.
20
LEGAL MATTERS
The
validity of the securities offered in this prospectus is being
passed upon for us by Morrison & Foerster LLP, San Francisco,
California.
EXPERTS
The consolidated financial statements incorporated
in this prospectus by reference
to our Annual Report on Form 10-K for the year ended June 30, 2018
have been so incorporated in reliance on the report of Crowe LLP,
independent registered public accounting firm, given on the
authority of said firm as experts in auditing and
accounting.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
Our Internet website is located at
http://www.generalfinance.com. Information contained on, or
that can be accessed through, our web site is not incorporated by
reference into this prospectus, and you should not consider
information contained on our web site as part of this
prospectus.
We are required to file Annual Reports on Form
10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K,
proxy statements and other information with the SEC. The public may
read and copy any materials we file with the SEC at the SEC’s
Public Reference Room at 100 F Street, N.E., Washington, D.C.
20549. The public may obtain information on the operation of the
Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC
also maintains an Internet website at http://www.sec.gov
from which interested persons can
electronically access our SEC filings, including this registration
statement and the exhibits and schedules hereto.
We
have filed with the SEC a registration statement on Form S-3, which
includes exhibits, schedules and amendments, under the Securities
Act, with respect to this offering of our securities. Although this
prospectus, which forms a part of the registration statement,
contains all material information included in the registration
statement, parts of the registration statement have been omitted as
permitted by rules and regulations of the SEC. We refer you to the
registration statement and its exhibits for further information
about us, our securities and this offering. The registration
statement and its exhibits, as well as our other reports filed with
the SEC, can be inspected and copied at the SEC’s public
reference room at 100 F Street, N.E., Washington, D.C. 20549-1004.
The public may obtain information about the operation of the public
reference room by calling the SEC at 1-800-SEC-0330. In addition,
the SEC maintains a web site at http://www.sec.gov, which contains
the Form S-3 and other reports, proxy and information statements
and information regarding issuers that file electronically with the
SEC.
No dealer, salesperson or any
other person is authorized to give any information or make any
representations in connection with this offering other than those
contained in this prospectus and, if given or made, the information
or representations must not be relied upon as having been
authorized by us. This prospectus does not constitute an offer to
sell or a solicitation of an offer to buy any security other than
the securities offered by this prospectus, or an offer to sell or a
solicitation of an offer to buy any securities by anyone in any
jurisdiction in which the offer or solicitation is not authorized
or is unlawful.
21
INCORPORATION BY REFERENCE
The Company is allowed
to “incorporate by
reference” the information it
files with the SEC, which means that we can disclose important
information to you by referring you to those documents. The
information incorporated by reference is an important part of this
prospectus, and information that we file subsequently with the SEC
will automatically update and supersede the information included
and/or incorporated by reference in this prospectus. We incorporate
by reference the following documents:
●
our Annual Report on Form 10-K for the year ended
June 30, 2018 filed with the SEC on September 7,
2018;
●
our Current Reports on Form 8-K filed with
the SEC on July 13, 2018,
August 10, 2018, August 16, 2010, September 5, 2018 (except with
respect to information furnished under
Item 2.02) and September 10, 2018;
●
the description of
our common stock contained in our Registration Statement on Form
8-A/A filed with the SEC on September 29, 2008 (File No.
001-32845), pursuant to Section 12(b) of the Exchange Act,
including any amendment or report filed for the purpose of updating
such description;
●
the description of
our 9.00% Series C Cumulative Redeemable Perpetual Preferred Stock,
par value $0.0001 per share, contained in our Registration
Statement on Form 8-A/A filed with the SEC on May 15, 2013 (File
No. 001-32845), pursuant to Section 12(b) of the Exchange Act,
including any amendment or report filed for the purpose of updating
such description; and
●
the description of
our 8.125% Senior Notes due 2021 contained in our Registration
Statement on Form 8-A filed with the SEC on June 13, 2014 (File No.
001-32845), pursuant to Section 12(b) of the Exchange Act,
including any amendment or report filed for the purpose of updating
such description.
Any
future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, during the period
after the date of the initial registration statement and prior to
effectiveness of the registration statement will be deemed
incorporated by reference. In addition, any future filings
we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, filed after the date
of the prospectus and prior to the termination of the offering are
deemed incorporated herein by reference.
Notwithstanding
the foregoing, information furnished under Items 2.02 and 7.01 of
any Current Report on Form 8-K, including the related exhibits
under Item 9.01, is not incorporated by reference in this
prospectus.
You
may obtain copies, without charge, of documents incorporated by
reference in this prospectus, by requesting them in writing or
orally. To receive any such copy, call or write or send us an
email:
General Finance Corporation
39 East Union Street
Pasadena, California 91103
Attention: Christopher A. Wilson
(626) 204-6308
notices@generalfinance.com
Exhibits to the filings will not be sent, unless
those exhibits have been specifically incorporated by reference in
this prospectus. General information about us, including our annual
reports on Form 10-K, quarterly reports on Form 10-Q and current
reports on Form 8-K, as well as any amendments and exhibits to
those reports, are available free of charge through our website
at http://www.generalfinance.com/investor.html as
soon as reasonably practicable after we file them with, or furnish
them to, the SEC. Information contained on , or that can be
accessed through, our web site is not incorporated by reference
into this prospectus, and you should not consider information
contained on our web site as part of this prospectus.
22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other Expenses of Issuance and Distribution.
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The
estimated expenses payable by us in connection with the offering
described in this registration statement (other than the
underwriting discount and commissions) will be as
follows:
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SEC
registration fee
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$31,125
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FINRA
filing fee
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*
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Accounting
fees and expenses
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*
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Printing
expenses
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*
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Legal
fees and expenses
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*
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Trustee
fees
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*
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Transfer agent
fees
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Rating
agency fees
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*
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Miscellaneous
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*
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Total
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$*
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*Estimated fees and expenses are not presently
known and will vary depending upon the amount of securities
issued in the offering. The foregoing
sets forth the general categories of fees and expenses (other than
underwriting discounts and commissions) that we anticipate we will
incur in connection with the offering of securities under this
registration statement. An estimate of the aggregate fees and
expenses in connection with the issuance and distribution of the
securities being offered will be included in the applicable
prospectus supplement.
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Item 15.
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Indemnification of Directors and Officers.
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We
are incorporated under the laws of the State of Delaware. Our
amended and restated certificate of incorporation provides that all
directors, officers, employees and agents of the registrant shall
be entitled to be indemnified by us to the fullest extent permitted
by Section 145 of the General Corporation Law of the State of
Delaware (the “DGCL”).
Section
145 of the DGCL provides that a Delaware corporation may indemnify
any persons who are, or are threatened to be made, parties to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of such corporation), by reason
of the fact that such person was an officer, director, employee or
agent of such corporation, or is or was serving at the request of
such person as an officer, director, employee or agent of another
corporation or enterprise. The indemnity may include expenses
(including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding, provided that
such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the
corporation’s best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
that his or her conduct was unlawful. A Delaware corporation may
indemnify any persons who are, or are threatened to be made, a
party to any threatened, pending or completed action or suit by or
in the right of the corporation by reason of the fact that such
person was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses
(including attorneys’ fees) actually and reasonably incurred
by such person in connection with the defense or settlement of such
action or suit provided such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the
corporation’s best interests except that no indemnification
is permitted without judicial approval if the officer or director
is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of
any action referred to above, the corporation must indemnify him or
her against the expenses that such officer or director has actually
and reasonably incurred.
Our
amended and restated certificate of incorporation provides that
expenses incurred by any officer or director in defending any such
action, suit or proceeding in advance of its final disposition
shall be paid by us upon delivery to us of an undertaking, by or on
behalf of such director or officer, to repay all amounts so
advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified by us.
Section
174 of the DGCL provides, among other things, that a director who
willfully or negligently approves of an unlawful payment of
dividends or an unlawful stock purchase or redemption may be held
liable for such actions. A director who was either absent when the
unlawful actions were approved, or dissented at the time, may avoid
liability by causing his or her dissent to such actions to be
entered in the books containing minutes of the meetings of the
board of directors at the time such action occurred or immediately
after such absent director receives notice of the unlawful
acts.
We
have entered into indemnification agreements with each of our
directors and officers that provide that we will indemnify the
directors and officers to the fullest extent permitted by
law.
23
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers, and controlling
persons pursuant to the foregoing provisions or otherwise, we have
been advised that in the opinion of the SEC such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment of
expenses incurred or paid by a director, officer or controlling
person in a successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, we will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to the court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
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Item 16.
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Exhibits and Financial Statement Schedules.
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(a)
The following exhibits are filed as part of this Registration
Statement:
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Exhibit No.
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Description
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1.1
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Form of Underwriting Agreement relating to the securities issued by the
Registrant†
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4.1
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Amended and Restated Certificate of Incorporation of the Registrant
as filed with the Delaware Secretary of State on April 4, 2006
(incorporated by reference to Exhibit 3.1 to Amendment No. 7 to the
Registrant’s Form S-1
Registration Statement (File No. 333-129830) filed on April 5,
2006)
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4.2
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Amended and Restated Bylaws of the Registrant (incorporated by
reference to Exhibit 3.2 to the
Registrant’s Quarterly
Report on Form 10-Q filed on November 14, 2007)
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4.3
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Form of
Common Stock Certificate (incorporated by reference to Exhibit 4.2
to Amendment No. 2 to the Registrant’s Form S-1 Registration
Statement (File No. 333-129830) filed on February 6,
2006)
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4.4
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Senior Indenture dated as of June 12, 2014 between General Finance
Corporation and Wells Fargo Bank, N.A., as trustee (incorporated by
reference to Exhibit 4.1 to the Current Report on Form 8-K filed on
June 18, 2014)
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4.5
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First Supplemental Indenture dated as of June 18, 2014 between
General Finance Corporation and Wells Fargo Bank, N.A., as trustee
(incorporated by reference to Exhibit 4.2 to the Current Report on
Form 8-K filed on June 18, 2014)
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Form of Second Supplemental Indenture between General Finance
Corporation and the Trustee
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4.7
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Form of Senior Note (included in Exhibit 4.6)
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Form of Warrant Agreement
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4.9
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Form of
Preferred Stock Certificate†
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Legal Opinion of Morrison & Foerster LLP
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12.1
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Statement regarding Computation of Ratio of Earnings to Fixed
Charges†
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Consent of Independent Registered Public Accounting Firm (Crowe
LLP)
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23.2
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Consent of Morrison & Foerster LLP (contained in Exhibit
5.1)
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Power of Attorney
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25.1
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Statement of Eligibility on Form T-1 under the Trust Indenture Act
of 1939, as amended, of Wells Fargo Bank, National Association, as
trustee under the senior indenture**
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25.2
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Statement of Eligibility on Form T-1 under the Trust Indenture Act
of 1939, as amended, of Wells Fargo Bank, National Association, as
trustee under the subordinated indenture**
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†
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To be filed, if necessary, subsequent to the effective date of this
registration statement by an amendment to this registration
statement or incorporated by reference pursuant to a Current Report
on Form 8-K in connection with the offering of
securities.
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**
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To be filed pursuant to Section 305(b)(2) of the Trust Indenture
Act of 1939, as amended.
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Item 17.
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Undertakings.
|
(a)
The undersigned registrant hereby undertakes:
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(1) To file, during any period
in which offers or sales are being made, a post-effective amendment
to this registration statement:
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(i) To include any prospectus
required by Section 10(a)(3) of the Securities Act of
1933;
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(ii) To reflect in the
prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange
Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than 20 percent change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in
the effective registration statement ; and
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(iii) To include any material
information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to
such information in the registration statement.
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provided, however, that
paragraphs (a)(1)(i),
(a)(1)(ii) and
(a)(1)(iii) above do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or
furnished to the Securities and Exchange Commission by the
registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in this registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
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24
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(2) That, for the purpose of
determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
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(3) To remove from registration
by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
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(4) That, for the purpose of
determining liability under the Securities Act of 1933 to any
purchaser:
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(i) Each prospectus filed by the registrant pursuant
to Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
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(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii), or(x) for the purpose of
providing the information required by section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included
in the registration statement as of the earlier of the date such
form of prospectus is first used after effectiveness or the date of
the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes
of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective
date.
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(5) That, for the purpose of
determining liability of the registrant under the Securities Act of
1933 to any purchaser in the initial distribution of the
securities:
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The
undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used
to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities
to such purchaser:
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|
(i)
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Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant
to Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared by or
on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
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(iii)
|
The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
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(iv)
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Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
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(b)
The undersigned Registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act
in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Trust Indenture
Act.
(c) The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the
registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit
plan’s annual report
pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(d)
The undersigned hereby undertakes to provide to the underwriter at
the closing specified in the underwriting agreements, certificates
in such denominations and registered in such names as required by
the underwriter to permit prompt delivery to each
purchaser.
(e)
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
25
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Pasadena,
State of California, on the 18th day of September,
2018.
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GENERAL FINANCE CORPORATION
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||
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By:
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/s/ Charles E. Barrantes
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Charles E. Barrantes
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Chief Financial Officer
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||||
KNOW
ALL PERSONS BY THESE PRESENTS, that each of the undersigned hereby
constitutes and appoints Ronald F. Valenta, Charles E. Barrantes
and Christopher A. Wilson, and each or any of them, as the
undersigned’s true and lawful attorney-in-fact and agent,
each with full power of substitution and re-substitution, for the
undersigned and on the undersigned’s behalf in any and all
capacities (including the undersigned’s capacity as a
director of General Finance Corporation) to sign, execute and file
this registration statement and any registration statement that is
to become effective upon filing pursuant to Rule 462 under the
Securities Act of 1933, as amended, relating to any offering of
securities in connection with this registration statement and any
or all amendments (including, without limitation, post-effective
amendments) to any such registration statements, and to file the
same, with all exhibits thereto and any and all documents required
to be filed with respect therewith, with the Securities and
Exchange Commission or any regulatory authority, granting unto such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith and about the
premises in order to effectuate the same as fully to all intents
and purposes as he might or could do if personally present, hereby
ratifying and confirming all that such attorneys-in-fact and
agents, or any of them, or his or her substitute or substitutes,
have done, may lawfully do or may cause to be done.
Pursuant to the requirements of the Securities Act
of 1933, this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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Name
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Position
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Date
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*
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Chairman of the Board of Directors
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|
September 18, 2018
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Ronald F. Valenta
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*
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Director, President and Chief Executive Officer
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|
September 18, 2018
|
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Jody E. Miller
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/s/ Charles E. Barrantes
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Executive Vice President and Chief Financial Officer (Principal
Accounting Officer)
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|
September 18, 2018
|
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Charles E. Barrantes
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*
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Director
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|
September 18, 2018
|
|
William H. Baribault
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*
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Director
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September 18, 2018
|
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Susan L. Harris
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*
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Director
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September 18, 2018
|
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Manuel Marrero
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*
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Director
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September 18, 2018
|
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James B. Roszak
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*
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Director
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September 18, 2018
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Douglas B. Trussler
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*
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Director
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September 18, 2018
|
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Larry D. Tashjian
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* By
Christopher A. Wilson, Attorney in Fact
26